File 2: Opinion of Chairman Cabaniss

[ v57 p41 ]

Opinion of Chairman Cabaniss, dissenting in part:

I disagree with the majority's conclusion that the award satisfies Prong II of BEP, 53 FLRA at 151-54, and therefore does not violate management's rights to assign work and to select under § 7106(a)(2) of the Statute. [n1] The Arbitrator found that the participation on the rating panel of a particular management official was inconsistent with the agreement. His award requiring that the panel be entirely reconstituted is therefore, at a minimum, a broader remedy than is warranted by the findings in the award. In addition, Article 25, Section 6 concerns the ranking criteria applied in a selection action; it does not concern the composition of a rating and ranking panel. The composition of the panel is a separate and unrelated matter. A valid reconstruction clearly would not involve the replacement of the entire panel. Consequently, I would modify that portion of the award by permitting the Agency the option to utilize on the panel anyone other than the particular management official in question.